Home Office in frame over FBI's London server seizures

Blunkett had final say on legality of request

The US seizure of two Indymedia servers in London last Thursday is likely to have needed the approval of UK Home Secretary David Blunkett, but Blunkett may have acted on tenuous legal grounds, according to a Statewatch analysis. Statewatch considers that the seizure is likely to have been made under a US-UK Mutual Legal Assistance Treaty (MLAT) of 1996, but it seems doubtful that the Indymedia request could have been justified under even the broad terms of this treaty.

Indymedia itself does not know why its servers were seized, while Rackspace, the hosting company which was compelled to hand them over, issued a statement saying it was complying with a court order under an MLAT, and that the court prohibited it from commenting further. Under the terms of this MLAT (there are more in the works, and others now litter the globe's legal systems) the Home Office may not admit that a request has been made. The FBI commented to Agence France Presse that this was not an FBI operation but a subpoena issued "on behalf of a third country" and that the FBI was acting for the Swiss and Italian governments. This, as The Register reported here, provides some clues regarding the justification for the seizure.

Indymedia had been contacted recently by the FBI and Swiss authorities regarding two photos of Swiss undercover police published on Indymedia's French site, IMC Nantes. The police had been handling the G8 events in Switzerland in 2003, but their identities do not appear to have been clear in the photos. Rackspace had also been contacted by the FBI, but according to Indymedia, correspondence it received from Rackspace on Tuesday indicated that the matter was closed. Or not. Indymedia is unable to identify a recent, particular reason for Italian involvement, aside from the Italian government's having been "overtly hostile ever since the 2001 G8 Summit in Genoa."

The likeliest grounds for the MLAT request would therefore seem flimsy, while the FBI's role as some kind of Uncle Enforcer for the Swiss and Italians seems a dubious use of a US-UK treaty.

And even if there were something far more serious involved than just a couple of photos, the procedure ought to send shivers down the spine of every publishing organisation on the Internet. It is clearly perfectly possible for their operations to be crippled without warning, without their being told what it is they've done, and without explanation. Depending on whether the authorities (under the international MLAT regime this could be many, many authorities) want something you've got or just want to stop you doing something, the crippling could be pretty extensive and pretty long term. If they want you to stop doing something then they'll quite likely want your backups as well, and if you've no servers, no backups, and no idea when/if you're getting them back, two photos is going to be the least of your worries.

Paradoxically, Indymedia may be rather less vulnerable to this kind of action than a conventional company or news organisation. Indymedia's decentralised structure (it describes itself as "a network of collectively run media outlets") gives it a certain amount of resilience - anybody wishing to knock it out entirely must recognise it has numerous heads in numerous jurisdictions to be cut off. The more structured IT setups of conventional publishing organisations, on the other hand, make it a far simpler task for their key infrastructure to be identified and impounded.

Standing between the press and such an unfortunate fate we have, in the UK, David Blunkett's Home Office. The terms of the 1996 MLAT would have permitted Blunkett to refuse assistance if he felt granting the request would impair sovereignty, security or "other essential interests or would be contrary to important public policy", or if the request relates to "an offence of a political character." The request itself should include a description of the proceedings to which the request relates, a summary of the information giving rise to the request, a description of the evidence sought, and the purpose for which it is sought.

It should also include "a precise description of the place or person to be searched and of the articles to be seized". David Blunkett's MLAT unit should therefore have in its possession details of proceedings to be brought against Indymedia and/or Rackspace by Italy and/or Switzerland. It should also be relatively confident that any alleged offence is not of a political character (photos of secret policemen seldom are, right?) and have a clear indication that the obtaining of the evidence sought necessitated the removal of whole servers or hard disks.

Or not. According to Indymedia in the AFP report: "The order was so short-term that Rackspace had to give away our hard drives in the UK." This suggests that the FBI requested something that was on the hard disk, now and that handing over the hard disk or the server was the only way to comply. So although the authorities will have known very well that they would be carrying off the hardware, the request itself quite possibly did not specify this. It is however clear from the MLAT's terms that it was devised primarily in order to detain or question individuals, and that if it has indeed been used here, the treaty has been to some extent repurposed.

The treaty does however provide for the "return of documents or articles... as soon as is practicable unless the Central Authority of the Requested Party waives the return of the documents or articles". The custodian here is the US, which presumably does not face insurmountable problems in extracting whatever it was its friends wanted, and sending the kit straight back. Statewatch editor Tony Bunyan has called on Blunkett to explain himself: "Why did the Home Office agree? What grounds did the USA give for the seizure of the servers? Were these grounds of a 'political' nature? Has the Home Office requested that the servers be returned? What does this action say about freedom of expression and freedom of the press?", he says. "A trail that started in Switzerland and Italy has now ended fairly and squarely in the lap of the UK Home Secretary to justify." ®